'SHAHID ANWAR BAJWA, J.--F.I.R. No, 64/2003 was registered at Mominabad Police Station on 4-3- 2003 at 2145 hours for an offence stated to have occurred on the same day at 2045 hours.
Complaint was lodged by one Rana Muhammad Saleem. The F.I.R. Is in the following words:-- "I reside at the above address mentioned in column No,2 along with wife and children and employed with Pakistan navy. Scarcely had I present in the house at Defence today dated 4-3- 2003 when my younger brother named Tariq informed me on phone my elder brother named Shaukat Ali has been killed at P.C.O. He is now at present available at Faizur Rehman Hospital, Metroville. I on this information therefore, rushed to Faizur Rehman Hospital and found my brother Shaukat Ali in dead condition and enquired about this from by Bhabi then wife of Slain. She narrated the facts" I was offering prayer. My husband named Shaukat Ali was sitting at his P.C.O. In the name and Style of Bismillah P.C.O. I suddenly reported the commotion and firing voice at about 2045 hours. I running rushed to P.C.O, witnessed my husband was severely injured, coming out from the P.C.O. And saying "Catch, Catch".
'I asked from my husband about the incident. My husband disclosed me Asif son of Muhammad Latif and his two accomplices shot him. Because Asif had to pay him rupees Six Thousand. He had demanded his amount from A.S-I, Mohallah persons and next to neighbour shop have also witnessed this incident. I with the help of neighbours have brought my husband to Faizur Rehman Hospital, where he died".
I have now come to lodge the report. My complaint is that Asif son of Muhammad Latif has shot with the help of his two accomplices on transaction of amount matter. I do lodge the report. Action may be taken. Heard the report, it is correct."
2. The present appellant was arrested on the same day. He was tried and was convicted by the Court of 1st Additional Sessions Judge, Karachi West under section 265-H (ii), Cr.P.C. For the offence of Qatle-Amd, punishable under section 302(b) to suffer life imprisonment as Tazir and pay Rs,50,000 compensation under section 445A, Cr.P.C. To the legal heirs of the deceased and in case of failure to pay compensation he shall further undergo R.I. For 6 months. Benefit of section 382-B, Cr . P. C . Was also extended to the accused.
3. Learned counsel for the appellant made the following submissions:--
(1) It was a blind murder case, Appellant has been falsely implicated.
(2) A pistol was stated to have been recovered from the appellant. There is no independent witness of recovery of the pistol. The empties did not match the recovered from scene of crime, did not match the pistol stated to have been recovered from the appellant. There has not been any confession by the appellant at any stage.
(3) So-called dying declaration is neither valid nor proved.
(4) No motive is proved. The appellant is not beneficiary of the incident.
(5) There is no eye-witness.
4. Learned APG supported the order of the Court below and submitted that trial Court has passed a well considered and well reasoned judgment.
5. I have considered the submissions made by the learned counsel and I have also gone through the record as well as the judgment passed by the Court below. In the judgment of the Court below reasons for decision start at page 5. However, till page 9, it is the only summation of evidence produced in the Court. Therefore reasons for the conclusion reached by the Court are stated at page 10 and all that Court below has stated in this regard in the following words:-- "No doubt that there is only evidence of P.W. Mst. Firdous who deposed that she heard noise of firing she immediately came at main gate and saw two culprits fleeing away while accused Asif was trying to flying chabotra she saw pistol in his hand. She further deposed that on the way to hospital her husband disclosed the name of accused Asif in presence of P.W. Tariq Mehmood and this fact is also confirmed by P.W. Muhammad Tahir Mehmood Tariq. Ocular testimony of one prosecution witness which is unimpeachable and confidence inspiring corrobora-ted by the medical evidence is sufficient to base conviction. Reliance is placed upon 2006 SCM R 1857 so also it has been held in 2002 PCr.LJ 1484. The State v. Muhammad Ajaib that testimony of even interested witnesses can be relied upon without corroboration, if it seems to be natural, convincing and truthful. It has been further held in 2002 PCr.LJ 113 Lahore, that the testimony of inimical witnesses not to be set aside with a stroke of pen. No doubt that P.W. Muhammad Akbar was not examined but it reveals that he was turned hostile hence there is justification not to examine him. It reveals from the evidence of Mst. Firdous that she has no motive to falsely depose against the accused so also there is no reason to Disbelieve her evidence.
' Specifically when the accused has not taken any plea in his evidence regarding his false implication. Recovery of crime weapon from accused also proved as per Exh.7/F and as per examination report Exh.7/D that fire was made from said recovered pistol and clothes of deceased were also stained with human blood as per Exh.7/E all these facts are sufficient to hold the accused responsible for the murder of deceased Shaukat Ali hence this point is answered in affirmative."
6. The first witness P.W.1 is the widow, Firdous. She stated that she was performing Eisha prayers when she heard noise of her husband. She discontinued her prayers and went out to the door of PCO which PCO was situated in her house and she heard her husband was pleading not to kill him.
She heard noise of fire and saw two persons fleeing away and the present appellant was trying to flee away. She further stated that she saw pistol in hand of the present appellant. She also said that one neighbour Muhammad Aslam chased the present appellant while taking stones in his hand as the present appellant fled away. Said Muhammad Aslam appeared as P.W.5. He stated that he was at his shop adjacent to shop of the deceased Shoukat. At about 8-45 p.m. Three persons came out of his (presumably deceased person's) shop and went away. Meanwhile deceased person looked at Muhammad Aslam and indicated' towards those three culprits. The witness further stated that he could not identify them as he did not see them. He further stated that Shoukat was injured and was in critical condition and the people of the area took him to the hospital. He further stated: "I cannot identify accused person in Court". Now there is a material contradiction. Mst. Firdous (P.W.1) said that Muhammad Aslam chased the appellant. She further says that appellant was having a pistol in his hand while fleeing. She further stated that while chasing him Muhammad Aslam had stones in his hand. P.W.5 Muhammad Aslam said he could not identify the accused. He had said not a single word regarding chasing him or seeing a pistol in any one's hand or having stones in his hand.
7. P.W.1 further stated that she took her husband to the hospital in a taxi and on the way the husband told her that Asif had attacked him and had tried to kill him. In the taxi Muhammad Tahir Mehmood, P.W.2 was also present and he stated that, my brother disclosed name of the present appellant. He also stated that Akbar also went in the same taxi to the hospital. Neither Akbar nor Taxi Driver were produced in evidence. In fact Akbar was mentioned as one of the witnesses in the challan but was not produced in evidence. In her statement under section 161, Cr.P.C. Mst. Firdous stated that in the taxi she asked her husband as to who had shot him and he moved his neck and said Asif. Third person who stated that Asif made the dying declaration is Muhammad Younus (P.W.9). He stated that while at the hospital he asked deceased about the crime and he disclosed that Asif fired upon him. Thus, the deceased named Asif as culprit in presence of two witnesses at one stage and one witness at another stage: two witnesses when he was in the taxi and to third witness when he was in the hospital. At both places he named the present appellant as the culprit.
Learned counsel of the appellant laid a lot of emphasis on statement under section 161, Cr.P.C. Of Mst. Firdous. In the Urdu version of the statement it is written {{URDU TEXT}}. In English translation it is written "he named only Asif by shaking the neck". Obviously English translation does not reflect the correct position. In Urdu if correctly translated it would be". He shock his neck and said Asif". This aspect of evidence has remained unshaken.
8. Regarding recovery of pistol, it is stated in memo. Regarding arrest that on 4-3-2003 at about 0300 hours while patrolling S.-I. Malik Hazoor Hussain along with P.C. Malik Azad and P.C.
Muhammad Ayub reached main road Faquir Colony, they found there a person in suspicious condition and on inquiry disclosed his name to be Asif, the present appellant. His personal search resulted in recovery of .30 bore pistol with two live rounds. This pistol is said to be the weapon.
Learned counsel for the appellant submitted that no finger print marks have been taken from the pistol. He further submitted that there is no independent witness of recovery and in the memo. Of recovery there is no explanation whatsoever regarding non-presence of any independent witness.
Most importantly he referred to Forensic Science Laboratory report. It may not be out of place here to recapitulate that the case property consisted of .30 bore pistol, one used shell and one coin.
Forensic Science Laboratory in its report has stated that no definite opinion can be expressed regarding the crime bullet due to lack of sufficient identifiable data. So there is a doubt whether the used bullet matched the alleged recovered pistol. Therefore as far as pistol is concerned and as far as A bullet is concerned nothing is proved against the accused. Learned counsel also referred to statement of P.W.7, who stated that he along with S.-I. Malik Safdar and P.C. Malik Azad were patrolling on a Motorcycle. Learned counsel submitted that it is highly improbable that three police officials would go on patrolling duty on a single Motorcycle. This may be a fact which can be considered in-juxta position with the fact that there is no independent witness of recovery of pistol.
As I have stated above use of this particular pistol has not been proved against the accused.
9. Learned counsel referred to the post-mortem report and his submission was that the accused had died on the spot and entire story has been made out to rope in the appellant. As far as accused dying on the spot is concerned, that is not supported by report of the post-mortem examination. Cause of death is stated to be due to haemorrhage shock as a result of fire-arm injury over chest. Thorax examination does not reveal that the bullet hit the heart or major blood vessel going into or coming out of the heart. Secondly all the witnesses are at one that accused was put in the taxi (there are two witnesses to it), while still alive, accused was taken to the hospital and it was in the hospital that he succumbed to his injuries.
10. Learned counsel for the appellant strenuously and exhaustively referred to the record regarding the time. His submission was that complainant Rana Muhammad Saleem recorded F.I.R. At 2145 hours. In his evidence Rana Muhammad Saleem who appeared as P.W.3, stated that after he came to know of death of his brother, he reached the hospital and there his sister-in-law told him that the deceased had told her that Asif had killed him. The witness further stated that after post- mortem he brought dead body home and thereafter went to P.S. To lodge F.I.R. He, lodged the F.I.R.
After one and half hours of bringing dead body home. The learned counsel emphasis was lodged at 2145 death is stated to have occurred at about 10 or so. The witness stated that he brought dead body home and then went to the P.S. To lodge F.I.R. Obviously the sequence of event does not tally up. There does appear to be very clear contradiction as far as timing is concerned. However, this contradiction does not shake essential and fundamental of evidence and the story. Brother of the witness had been murdered if he mixed up the timing and sequence that should not knock out the whole case. In the F.I.R. Which is the first past incident report, the complainant did not say that he had come to the P.S. After bringing dead body home. Therefore subsequently jumbling up of sequence unless it can be shown to have caused serious doubt on essential and fundamental of the prosecution story, can never be sufficient to completely discard entire evidence.
11. The above discussion leads me to conclusion that as far as crime weapon, pistol is concerned, firstly it has not been proved that this pistol was used in commission of the crime. Secondly recovery of the pistol from the appellant is doubtful. There are three reasons for it. Firstly there is no independent witness of recovery, secondly it is highly doubtful that someone after committing a murder at 8 `0' Clock would roam in the street at 3 in the morning having the crime weapon tucked in his Shalwar; and thirdly I have all respect for efficiency of police but three policemen going on patrolling at 3-00 a.m. On a single Motorcycle seems highly improbable.
12. However, dying declaration has remained unshaken and cannot be washed away. Therefore, in my opinion, the appellant has been proved guilty of having committed the crime alleged against him. However, considering the fact that crime weapon has not been recovered and sole testimony is dying declaration and that motive has not been unambiguously established. I reduce sentence of imprisonment for life imprisonment to rigorous imprisonment for 10 years. In other respect judgment of the Court below B is maintained. This appeal is consequently allowed in the above terms.